Robocalls Instigate a Cellphone Fight
Originally published by the New York Times Nov. 12, 2011.
Hear an NPR interview Nov. 14 with Professor Stross on the same topic.
By RANDALL STROSS
ALMOST everyone with a landline has felt the annoyance of picking up the phone and realizing that a call is not from a friend or a family member but rather is a prerecorded message delivered by a software-robot.
Currently, cellphone users are protected from these “robocalls” if they haven’t consented to receive them, but some industry groups are pushing for a clearer path to making those calls.
Since 1991, federal law has protected cellphones from the reach of two kinds of automated calling equipment. One blasts out prerecorded messages to thousands of numbers simultaneously. The other dials many numbers in quick succession, and, if a human answers, signals a customer service representative to come on the line (a telltale moment of dead air signals one of these calls).
Telemarketers cannot make prerecorded calls to either residential landlines or cellphones, unless the recipient has provided express consent or has a business relationship with the caller. For commercial calls that do not involve an explicit sales pitch, the law extends special protection to cellphones: automated equipment cannot be used unless the recipient has provided consent.
“Consent” is not hard to secure. Current law assumes that it is given by the act of providing one’s phone number, even if it was just for a one-time home delivery or was mentioned in reply to a clerk’s spoken question. This allows automated cellphone calls that may not be especially welcome, like a “customer satisfaction” survey administered entirely by robo-software, or robo-messages about an overdue payment.
The Federal Communications Commission has been working on a draft of a stricter rule defining consent. Businesses might be required to secure the customer’s consent in writing or from a box clicked online if automatic calling equipment will be used to call the customer’s cellphone in the future.
The American Bankers Association, the Association of Credit and Collection Professionals and other trade groups want to prevent the F.C.C. from strengthening the consent requirement. They are backing a bill in the House, H.R. 3035, that they say would clarify issues of consent surrounding automated calls.
The lobbyists try to argue that the protections extended to cellphones in 1991 were necessary only because the per-minute cost of receiving calls was high. Those costs have fallen greatly since then — so, they argue, there is no need to continue to treat cellphones differently.
It’s not quite that simple, however. For someone with a flat-rate wireless plan, receiving an unwanted robocall does not incur a cost measured by the minute. But as more consumers use their phones less for actual calls and opt for prepaid plans, there’s a visible cost for every minute of use. Separately, there is the harder-to-calculate cost of having one’s personal space invaded by a robocaller that one never wished to summon.
The bill is opposed by the National Association of Consumer Advocates, the Consumer Federation of America, Americans for Financial Reform, Consumer Watchdog, the U.S. Public Interest Research Group and other consumer advocates.
Currently if consumers would like to receive robocalls on their cellphones, they can give their consent, without need of a new law.
Brad Herrmann, president of Call-Em-All, a company in Frisco, Tex., near Dallas, said: “I’ve seen other companies in the industry say, ‘We currently can’t send informational calls to cellphones.’ I disagree — we do it every day. The current law is clear.”
Call-Em-All provides automated voice and text messages; schools are among its primary clients. The company is able to notify all parents of a snow day, for example, to whatever number they give to the school. This sort of service is not what comes to mind, however, when Mr. Herrmann tells people that he’s in the “automated calls” business. “They think two things: telemarketing or political calls,” he says.
CHURCHES, P.T.A.’s, sports leagues, clubs and associations also use Call-Em-All. Mr. Herrmann says his company, founded in 2005, makes six million automated calls a month.
A robocall to a cellphone about a scheduled softball game that has just been rained out is welcome. A robocall to the same cellphone from a debt collector may not be. One sees why some businesses would like to keep the bar defining consent as low as possible. If they mishandle consent, they could face costly legal exposure.
Sallie Mae, the giant lender to college students, faced a class-action lawsuit last year brought by plaintiffs who claimed that from 2005 to 2010 they had received robocalls to their cellphone numbers without prior express consent. The lender has offered to settle for $19.5 million; the court has not made a final ruling. (A Sallie Mae spokeswoman, Patricia Nash Christel, said, “We have denied vigorously all claims asserted against us and cannot comment further on pending litigation.”)
Cellphones are an immeasurable convenience. But the fact that the phones go wherever we go means that unwanted calls of any kind feel far more intrusive than calls that came in to the home number (for those who remember home numbers). The banks’ last nifty idea for consumers was a monthly charge for debit cards. Their fight to block stronger protection of our cellphone numbers is just as consumer-friendly.